COURT FILE NO.: FS-19-00014030
DATE: 20211008
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: N.S., Applicant
AND:
A.N.S., Respondent
BEFORE: C.Horkins J.
COUNSEL: A. Sam Zaslavsky, for the Applicant
A.N.S., acting in person
HEARD at Toronto: In Writing
REASONS FOR COSTS DECISION
overview
[1] The seven-day trial in this matter was held in June 2021 and Reasons for Judgment were released on July 30, 2021 (2021 ONSC 5283, 2021ONSC5283).
[2] The Applicant mother (“mother”) was successful. Final orders were made allowing the mother to relocate with the child to Israel, requiring the Respondent father’s (“father”) parenting time to be supervised and providing for termination of such parenting time as set out in the orders.
[3] The mother seeks costs in the amount of $32,945.15 inclusive of fees, disbursements and H.S.T. The father has not filed a response to this request although given an opportunity to do so.
[4] The Family Law Rules, O. Reg. 114/99 are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behaviour by litigants, and to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867.
[5] Pursuant to rule 24(1) there is a presumption that a successful party is entitled to costs. This presumption is subject to the factors in rule 24(12) that the court "shall consider" in "setting the amount of costs" as follows:
(12) In setting the amount of costs, the court shall consider,
(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
(i) each party's behaviour,
(ii) the time spent by each party,
(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,
(iv) any legal fees, including the number of lawyers and their rates,
(v) any expert witness fees, including the number of experts and their rates,
(vi) any other expenses properly paid or payable; and
(b) any other relevant matter.
[6] As this rule states, proportionality and reasonableness are the "touchstone considerations" to be applied when fixing the amount of costs: Beaver v. Hill, 2018 ONCA 840 at para. 12.
[7] Rule 24 (7) deals with the unprepared party and states:
If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step or otherwise contributes to that step being unproductive, the court shall award costs against the party unless the court orders otherwise in the interests of justice.
[8] Finally, the Family Law Rules expressly contemplate that a party shall receive full recovery costs in specific circumstances: when a party has acted in bad faith - rule 24(8) and when a party has beat an offer to settle - rule 18(14).
[9] The mother did not serve any offers to settle and so rule 18(14) is not triggered. It is her position that the Respondent father was “completely unprepared to deal with the issues at trial” and he acted unreasonably and in bad faith. For these reasons, she seeks full recovery of her costs.
analysis
[10] The application in this Court flowed from the child protection proceeding in the Ontario Court of Justice. That proceeding was necessary because Justice Paisley’s October 22, 2018 order gave the father unsupervised parenting time. The Jewish Family and Child Service and the Ontario Court of Justice determined that this 2018 order was insufficient to protect the child. The child was found to be in need of protection having suffered emotional harm and being at risk of ongoing harm due to the father’s behaviour and the resulting conflict.
[11] The Ontario Court of Justice made orders placing the child in the mother's care and limiting the father's access to the child to the discretion of the Jewish Family and Child Service. The father was ordered to undergo a mental health assessment by Justices Sager and Spence. This court also made such an order. He refused to comply. The extensive efforts to remediate the father’s harmful behaviour, before and during the child protection proceeding, failed. As a result, the mother had to return to this court to seek a variation of Justice Paisley’s order to require the father’s parenting time to be supervised.
[12] The mother explains that she did not serve an offer to settle because the father had rejected all attempts to settle the matter. The father’s unreasonable and uncooperative behaviour throughout the child protection proceeding left the mother with no choice but to bring her application in this court to seek relief. In deciding costs, I rely on the Corrected Reasons for Judgment that set out in detail the father’s long standing and ongoing unreasonable and abusive behaviour (2021 ONSC 5283). Such behaviour continued before and during the trial.
[13] The mother’s counsel has filed a Bill of Costs. His year of call is 2014 and his hourly rate is $350. In total he spent 83.3 hours. This covers the trial preparation, 7 days of trial (including closing submissions) and responding to an emergency motion the father filed after the trial, seeking to stop the mother from going to Israel with the child for her July vacation. This motion was dismissed.
[14] Counsel’s Bill of Costs is reasonable and proportionate to the factors in rule 24(12). The evidence at trial was extensive. The evidence in chief was presented by lengthy affidavits with cross-examination. There was one exception: the father refused to comply with the order that his evidence in chief be the trial given by affidavit. As a result, he testified in chief without his affidavit and was cross-examined.
[15] The issues at trial were extremely important and focused on the safety of the child.
[16] The application was case managed and numerous orders were made by Justice Kimmel. These orders gave the father clear directions on what he had to do to be prepared for trial. He did not comply. The father was unprepared for the trial and repeatedly refused to follow orders made during the trial.
[17] During the trial the father was frequently abusive and at times threatening to the mother, her counsel, and the Jewish Family and Child Service witnesses. His conduct was disruptive and added to the trial time, as set out in detail at 2021 ONSC 5283. The father refused to comply with the court orders requiring him to have mental health assessment and so his concerning behaviour was never assessed.
[18] During the trial, there was no reason to conclude that the father did not understand the numerous court orders that required him to take various simple steps (i.e. produce his witness list, serve and file his evidence in chief affidavit, file his documents on CaseLines).
[19] The mother submits that this is bad faith conduct. However, if it does not reach the threshold for bad faith, she says that the father’s conduct was so unreasonable that full recovery costs should still be awarded.
[20] The threshold for bad faith and what constitutes bad faith is explained in Chomos v Hamilton, 2016 ONSC 6232 at paras. 43- 48 as follows:
But Rule 24(8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made. S.(C.) v. S.(C.) 2007 20279 (ON SC), [2007] O.J. No. 2164; Piskor v. Piskor 2004 5023 (ON SC), [2004] O.J. No. 796 (SCJ); Cozzi v. Smith 2015 ONSC 3626, 2015 ONSC 3626 (SCJ).
In S.(C) v. S.(C) (supra) Perkins, J. defined bad faith as follows:
In order to come within the meaning of bad faith in sub rule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significant part of the person's intent. At some point, a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.
Bad faith is not synonymous with bad judgment or negligence. Rather, it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity. Bad faith involves intentional duplicity, obstruction or obfuscation: Children’s Aid Society of the Region of Peel v. F.(K.J.), 2009 ONCJ 252, [2009] O.J. No. 2348 (OCJ); Biddle v. Biddle, 2005 7660 (ON SC), 2005 7660 (SCJ); Leonardo v. Meloche, 2003 74500 (ON SC), 2003 74500 (SCJ); [2003] O.J. No. 1969 (SCJ); Hendry v. Martins, [2001] O.J. No. 1098 (SCJ).
There is a difference between bad faith and unreasonable behaviour. The essence of bad faith is when a person suggests their actions are aimed for one purpose when they are aimed for another purpose. It is done knowingly and intentionally. The court can determine that there shall be full indemnity for only the piece of the litigation where bad faith was demonstrated. Stewart v. McKeown, 2012 ONCJ 644, 2012 ONCJ 644 (OCJ); F.D.M. v. K.O.W. 2015 ONCJ 94 (OCJ).
To establish bad faith the court must find some element of malice or intent to harm. Harrison v. Harrison 2015 ONSC 2002.
Bad faith can be established by the intentional failure to fulfill an agreement in order to achieve an ulterior motive or, an intentional breach of court order with a view to achieving another purpose: Piskor v. Piskor, (supra); Erikson v. Erikson 2000 29675 (ON SC), 2000 29675 (SCJ); Hunt v. Hunt 2001 39078 (ON SC), 2001 39078, [2001] O.J. No. 5111 (SCJ).
[21] This is not a case where the father had an ulterior motive. His actions or non-actions were focused on defeating the mother’s application and securing unsupervised parenting time and decision-making authority. His actions were grossly misguided and caused serious emotional harm to the child. The father has never paid the court ordered child support and he has threatened the security of the mother’s employment. While I am not satisfied that the father intended to inflict harm on the child, at times he appreciated the harm he has caused. I say this because on brief occasions the father behaved and followed the instructions of the care workers at the Jewish Family and Child Service.
[22] During the application, the father simply ignored the numerous court orders and showed a lack of respect for the process and the court orders. His behaviour necessitated multiple attendances before Justice Kimmel who made every effort to give the father directions and clear orders to ensure that he would be ready for trial.
[23] At trial, the father’s unpreparedness caused the trial to be extended by a day. During the trial the father’s abusive behaviour frequently interfered with the trial process. He interfered with questions asked by the mother’s counsel and the answers given. He was repeatedly instructed not to speak when another person was speaking. He ignored this request and on several occasions his zoom microphone had to be muted. His interference was often abusive. For the most part, the father ignored the court’s request that he respect the process, cease his abusive remarks and not interfere. The father exhibited no signs that he did not understand the requests to behave. I conclude that he intended to disrupt the process and did so every day of the trial. His conduct was wholly unreasonable and justifies full recovery costs. I find that his trial conduct was so serious that it rises to the level of bad faith conduct. The father knew that his interfering and abusive conduct was unacceptable, and he did not care. With or without a finding of bad faith, the mother is entitled to full recovery costs.
[24] For these reasons, the mother is entitled to full recovery of her costs. I fix her costs at $32,945.15 inclusive of fees, disbursements and H.S.T.
conclusion
[25] I make the following final order:
The respondent shall pay the applicant costs in the amount of $32,945.15 inclusive of fees, disbursements and H.S.T. payable no later than November 8, 2021.
Approval of this order by the respondent as to form and content is waived.
C. Horkins J.
Date: October 8, 2021